Public protector Busisiwe Mkhwebane has accused President Cyril Ramaphosa of doing exactly what the Constitutional Court found his predecessor Jacob Zuma guilty of — failing to uphold the constitution.
Zuma failed to act on then public protector Thuli Madonsela’s order that he repay part of the millions of rands in state money spent on non-security upgrades to his Nkandla home, without challenging that report in court.
By contrast, Ramaphosa has drawn Mkhwebane’s ire by not taking disciplinary action against public enterprises minister Pravin Gordhan over the findings she made against him in her investigation into the early retirement granted to former SA Revenue Service deputy commissioner Ivan Pillay.
Despite [the president's explanation] Mkhwebane remains resolved that Ramaphosa needs to obtain a court interdict that blocks him from acting on her remedial action.
“The president’s refusal to act on my remedial action is a failure on the president’s part to uphold the constitution,” she states in a letter sent to Ramaphosa on June 26. She later adds that she “can deduce … that the decision not to implement was a foregone conclusion as it is merely based on Mr Gordhan’s assertions, and nothing else”.
In an apparent bid to defuse the developing stand-off between himself and Mkhwebane, Ramaphosa met the public protector on Monday to explain the stance he had taken and undermine any suggestion that he was defying the Chapter 9 institution.
“The president explained that there was a dispute pending before the high court over the legality of the findings on which to base the recommended disciplinary action. Furthermore, this dispute legally challenged the president’s alleged power to exercise such disciplinary action,” the presidency said in a statement about that meeting.
As a result, the presidency said, Ramaphosa “indicated to the public protector his intention to defer his decision on what disciplinary action, if any, to take against minister Gordhan until final determination of the minister’s review application”.
Despite this, it appears Mkhwebane remains resolved that Ramaphosa needs to obtain a court interdict that blocks him from acting on her remedial action against Gordhan, or face further accusations that he is failing to uphold the constitution.
“Contrary to the president’s advice that I should approach a court for compelling compliance, it is the president that should approach the court to interdict by remedial action,” she states in her June 26 letter to the president.
“Absent an order directing otherwise, my remedial action is binding and compliance thereto is not optional.”
Her office has pointed to the legal action taken against the public protector by former Western Cape premier Helen Zille, who went to court to urgently stay the implementation of the remedial action ordered against her by Mkhwebane in separate reports on her controversial colonialism tweets, and her teacher son’s use of state tablets to teach extra maths lessons.
Review outcome
But does Zille’s legal strategy prove Mkhwebane right? No, says constitutional law expert Lawson Naidoo. He told Business Day on Monday that the stance adopted by Mkhwebane “demonstrated her lack of understanding of the law and of her mandate”.
He said Gordhan’s legal action stayed the implementation of Mkhwebane’s remedial action, pending the outcome of his review.
“To suggest otherwise would be nonsensical. The president has fulfilled his responsibility by engaging with the public protector on her report. The public protector is clearly pursuing a political and not a constitutional agenda.”
As a matter of common sense, a pending legal review of a public protector report should stay the implementation of remedial action — particularly in circumstances where that remedial action has potentially prejudicial implications.
For Gordhan, those implications relate to Mkhwebane’s findings that his conduct in the Pillay matter fell foul of the constitution.
The disputed report relates to the approval by Gordhan — who was finance minister at the time — for Pillay to be granted early retirement and for Sars to cover the cost of the resulting actuarial shortfall. Gordhan also approved a request to then keep Pillay on at Sars on a fixed-term contract.
Mkhwebane found Gordhan guilty of improper conduct, in a report he has described as politically motivated and “riddled with reviewable errors”.
With Ramaphosa making it clear that he has no intention to act on that report before a court rules on Gordhan’s court challenge, the next move is Mkhwebane’s. Either she backs down or she takes the president to court.
Either decision may cost her, politically and legally.
Mkhwebane’s stance, if correct, will also result in an increase in legal challenges to her reports — as those seeking to challenge them will need to take her to court twice: once to interdict remedial action being implemented and then to review the report in its entirety.
Effectively, the public protector may end up doubling her time in court.
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